GOP wary of big battle over high court nominee

Peter Baker and Carl Hulse, New York Times

Published 4:00 am, Sunday, April 11, 2010

Photo: Mandel Ngan, AFP/Getty Images

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(FILES) Photo dated September 29, 2009 shows US Supreme Court Justice John Paul Stevens during a group photo at the Supreme Court in Washington. Stevens, again has said he may soon bow out, which would open a door to President Barack Obama's second pick to the high court. April 3, 2010. "The president and the Senate need plenty of time to fill a vacancy." Stevens, set to turn 90 this month, told the Times he did not like to give interviews "because it saves an awful lot of time if you dont." less

(FILES) Photo dated September 29, 2009 shows US Supreme Court Justice John Paul Stevens during a group photo at the Supreme Court in Washington. Stevens, again has said he may soon bow out, which would open a ... more

Photo: Mandel Ngan, AFP/Getty Images

GOP wary of big battle over high court nominee

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The retirement of Justice John Paul Stevens presents a test for Republicans as much as it does for President Obama as they weigh how much they want to wage a high-profile battle over ideological issues in the months before crucial midterm elections.

In the aftermath of the polarized health care debate, some Republican leaders said they were reluctant to give Democrats further ammunition to portray them as knee-jerk obstructionists. But they also want to harness the populist anger at Obama's policies and are wary of alienating their base when they need it most.

As they balance these competing imperatives, Republicans said they planned to move deliberately at first and avoid declarations that could box them in. With Democrats' poll numbers down, Republicans said they did not necessarily want a fight for the sake of a fight because it could boomerang on them, and they left open the possibility that Obama might pick someone they could largely support.

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Obama appears to be leaning toward choices intended to avoid provoking Republicans. Still, any Supreme Court vacancy energizes the most committed activists on both sides, particularly over issues like abortion, guns and religion.

The Family Research Council, a leading conservative group, sent an alert to members on Friday and will ask supporters to begin contacting senators. "If he selects someone with a radical judicial philosophy, the fabric of our already divided country will be torn even more," Tony Perkins, the group's president, said in an interview.

By all accounts, the three front-runners are Solicitor General Elena Kagan and two appeals court judges, Diane Wood of Chicago and Merrick Garland of Washington. The main choices of liberals are not in the top tier.

Kagan, considered by some Democrats as the most likely candidate, could be hard for Republicans to block given her lack of a judicial paper trail and her support from conservatives who appreciated her opening the doors to them when she was dean of the Harvard Law School.

Garland, who is well known and well regarded in Washington's political-legal circles, is widely seen by Republicans and Democrats as the safest choice, most likely to draw 85 votes. Wood, who is less known in Washington, would be the favorite of liberals among the top three and has written decisions on abortion and religion that would generate more fire from the right.

Sen. Chuck Schumer of New York, a Democratic leader who shepherded Sonia Sotomayor through confirmation, said the focus should be finding a nominee who could influence Justice Anthony Kennedy, the swing vote on the closely divided nine-member court, rather than selecting a firebrand who writes powerful dissents.